Thursday, February 28, 2013

March Open Meeting Agenda

The FCC released the tentative agenda for its March Open Meeting.  The Commission plans to consider a Notice of Proposed Rulemaking on improving the reliability of 911 service, which is based on its January 2013 report on the Derecho.  The Commission will also hear a report of the FCC’s work with Tribal Nations to expand the reach of communications services.  The meeting is scheduled for March 20 at 10:30 AM.  It will be broadcast live at www.FCC.gov/live

Please contact the TLP team if you have any questions about the upcoming meeting.

FCC's NG911 Recommendations

The FCC released a report and recommendations to Congress on the legal and regulatory framework for next generation 911 services (“NG911”).  The report describes the current state of NG911 regulations and makes several recommendations on steps Congress can take to accelerate the nationwide transition from legacy 911 to NG911.  The FCC recommends that Congress:

  • Create competitive funding programs to encourage states to adopt NG911 early;
  • Encourage states to establish boards that can provide technical and operational expertise on NG911;
  • Grant federal agencies authority over NG911 so they can coordinate with each other more effectively and eliminate gaps between federal and state authority;
  • Require common technical standards so that information can easily be shared between public safety entities;
  • Use incentives to encourage regional NG911 call centers;
  • Require federal NG911 funding to be used only for NG911;
  • Encourage states to limit liability on NG911 providers and include liability protection in any federal laws dealing with NG911;
  • Update laws to ensure that disabled people can use new technologies and explore how technology can ease their communication with public safety services;
  • Provide incentives for developing improved location technologies and clarify that all network access providers and over-the-top NG911 providers must supp FCC's NG911 Recommendationsort location services;
  • Ensure security standards and credentialing for NG911 networks;
  • Track, and require NG911 participants to disclose, their progress towards reaching NG911 goals; and
  • Remove jurisdictional barriers and inconsistent legacy regulations.
Please feel free to contact TLP if you have any questions regarding this report.

Wednesday, February 27, 2013

Court Upholds FCC's Pole Attachment Order

The DC Circuit Court of Appeals unanimously upheld the FCC’s 2011 pole attachment order, in which the FCC allowed ILECs to share the benefits of Section 224 of the Communications Act.  Section 224 gives advantages to some companies that seek to attach wires, cable, or other network equipment to utility poles.  The change will allow ILECs to negotiate pole-attachment terms with utility companies and file related complaints with the Commission.  The court found that even though the FCC was reversing its existing policy, it met “the requirement of reasoned decisionmaking [. . .] that it ‘display awareness that it is changing position.’”  The FCC adequately reasoned that ILECs should benefit from the statute because they provide telecommunications services. 

If you have any questions regarding the above decision, please feel free to contact the TLP team.

Monday, February 25, 2013

Hearing Aid Compatibility Compliance Guide

Today the FCC released the Small Entity Compliance Guide to help small entities comply with the Commission’s most current hearing aid compatibility technical standard, which was adopted in April 2012.  The guide summarizes the new standard, along with transitional testing requirements for handsets, disclosure requirements and deployment benchmarks. 

If you should have any questions regarding the FCC's released requirements, please feel free to contact us.

Congress to Investigate Whether Obama Administration's Broadband Stimulus Is Working

On Wednesday, February 27, 2013, at 10:00 am EST, the House Energy and Commerce Committee's Subcommittee on Communications and Technology will hold a hearing as part of its ongoing oversight of the NTIA BTOP and RUS broadband loan and grant programs, which were signed into law by President Obama in early 2009 as part of his nearly $800 billion economic stimulus package. The Subcommittee indicates that "[m]ore than four years have passed since the American Recovery and Reinvestment Act allocated $7 billion for broadband grants and loans" and the "hearing will review whether taxpayers are getting a good return on their investment, examine recent allegations of waste, and discuss measures that might be taken to promote innovation and avoid certain pitfalls in the future." Many rural and small cable and Internet service providers have complained that the broadband loans and grants are being used to fund projects that overbuild in areas where there are existing broadband facilities for consumers rather than funding the deployment of broadband services to the un-served in new areas. 

The following witnesses are scheduled to appear before the Subcommittee at the hearing: Lawrence E. Strickling (Assistant Secretary for Communications and Information & Administrator of the National Telecommunications and Information Administration (NTIA)), John Padalino (Acting Administrator of the Rural Utilities Service (RUS)), Pete Kirchhof of the Colorado Telecommunications Association, Ann Eilers of the Office of Inspector General  in the U.S. Department of Commerce, Michael K. Smith of FairPoint Communications, Bruce Abraham of North Georgia Network and Joe Freddoso of MCNC.

The majority Committee staff's briefing memoradum for the hearing follows below.


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Overview

Whether taxpayers are getting their money’s worth four years after the American Recovery and Reinvestment Act of 2009 (ARRA) allocated $7 billion for broadband grants and loans is questionable. Approximately $611 million of the funding covering 42 projects has been revoked, relinquished, or suspended. Advocates of the law said it needed to be rushed through Congress to infuse money into the troubled economy and that the funding would go to shovel-ready projects. Yet only 60 percent of the broadband funds have been put to use so far even though all $7 billion was awarded by September 30, 2010. And of the 553 projects funded, only 58 are finished or in the finishing stages, even though all were originally supposed to be completed by September 30, 2013.

Although the NTIA and RUS say they have made great strides, demonstrating a direct link between this ARRA spending and increases in broadband access or adoption is difficult. The Government Accountability Office (GAO) recently concluded that data limitations make it hard to assess the impact of the NTIA and RUS programs. Moreover, even without the benefit of ARRA funding, 95 percent of the population already had access to fixed broadband service by 2010, two-thirds of households subscribed, and the number of people with broadband at home had grown from 8 million to 200 million in the prior decade. That does not even count wireless service. As of mid-2012, wired broadband access had ticked up to 96 percent of the population. By the end of 2011, subscribership had reached 71 percent of households and the number of people with broadband at home had climbed to 220 million subscribers. Private investment is likely the source of this continued growth since the stimulus money is only recently entering the pipeline.

Indeed, private-sector wired and wireless broadband providers have invested an average of $65 billion a year between 2002 and 2011, as compared to the one-time investment of $7 billion in public funding nationwide. Moreover, parties that invest their own money are understandably more likely to scrutinize any economic analysis or strategic plan, since they bear the risk; conversely, the broadband stimulus projects using taxpayer dollars have attracted numerous allegations of waste and overbuilding. This is not to say there is no good coming from these stimulus programs. The question is whether they have failed to minimize costs, maximize benefits, and generate adequate return on investment, especially in the current fiscal climate. Better directing the money to areas where there was no economic business case for the private sector to deploy service would have helped. That, at least, would have focused government intervention on market failures and been more targeted to the ostensible goal of expanding broadband access to people for whom service was not available.

Background

The ARRA charged the NTIA with creating the $4.7 billion Broadband Technology Opportunities Program (BTOP). Of that money, the NTIA used approximately $300 million for the National Broadband Map and approximately $4 billion to award 233 broadband grants. Congress rescinded approximately $300 million in 2010 for other spending. NTIA used the rest for administration and oversight.

The ARRA similarly charged the RUS with creating the $2.5 billion Broadband Initiatives Program (BIP). RUS dedicated $2.28 billion to broadband grants and used $87 million to back $1.26 billion in broadband loans. The RUS used the rest for administration and oversight. Altogether the RUS issued 320 BIP awards.

The ARRA instructed the NTIA and RUS to give precedence to shovel-ready projects that could be "substantially complete" within "project timelines, not to exceed 2 years following an award," and to "activities that can commence promptly following approval." To be substantially complete, a project must have received two-thirds of its award. NTIA projects were supposed to be completed within three years of the grant. The RUS started with the same requirement but in October 2011 extended the deadline to June 30, 2015. The NTIA and RUS made awards in two rounds, with the first round beginning in June 2009 and ending in April 2010, and the second round beginning in January 2010 and ending in September 2010.

From among the 233 NTIA grants, four have been closed out and 30 are in the closeout process. A grant is closed out when all of the project finances are reconciled, final reports are submitted, and the government has a full accounting of the property paid for with taxpayer funds. An awardee that has closed out, however, may not necessarily have completed 100 percent of the work described in the initial grant, but then may be required to relinquish some of the original funding. The NTIA has received more than 35 deadline extension requests and approved more than 20, with the others still pending. Approximately $2.8 of the $4 billion has been spent as of July 2012. Twelve of the awards worth $343 million have been returned, revoked, or are currently suspended. The Leech Lake Reservation Business Committee in Minnesota declined its $1.7 million grant on the grounds that it would not be able to meet its grant requirements. Three BTOP participants—the State of Wisconsin Department of Administration, the Education Networks of America in Indiana, and the City of Tallahassee of Florida—have returned their grants totaling $38.5 million. The NTIA has revoked the $80.6 million grant to the State of Louisiana Board of Regents and the $59.3 billion grant to Trillion Communications in Alabama for material non-compliance and has also terminated three grants totaling $4.2 million to Digital Bridge Communications for last-mile broadband in Idaho. The $18.9 million Buggs Island project in Virginia, the $100.6 million EagleNet project in Colorado, and the $39.2 million GovNet project in Arizona are all currently under suspension for performance reasons. In April 2012, the NTIA lifted the suspension of a $30.1 million grant to the North Florida Broadband Authority.

From among the 320 RUS awards, 24 were listed as fully complete as of December 2012. One hundred and sixteen projects are at least partially complete and providing broadband service. As of February 12, 2013, the RUS reports it had disbursed $1.6 billion to BIP recipients. Five projects have yet to receive a disbursement. As of February 2013, $191 million in BIP grants and $77 million in BIP loans have been rescinded or revoked from 30 projects: Litestream Holdings in Florida, Cellular Properties in Illinois, Norlight in Illinois, Digital Bridge Communications in Indiana and Mississippi, Mid-Hudson Cablevision in Massachusetts and New York, Dell Telephone Cooperative in New Mexico, Nelsonville TV Cable in Ohio, Panhandle Telephone Cooperative in Oklahoma, Pioneer Long Distance in Oklahoma, Five Area Telephone Cooperative in Texas, Telecom Cable in Texas, South Central Utah Telephone Association in Utah, Lenowisco Planning District in Virginia, Public Utility District 1 of Chelan County in Washington, Utopian Wireless Corporation in 8 states, Eastlight in Iowa, Broadband in Missouri, Gateway Telecom in West Virginia, Kenyon Communications in Nevada, Pueblo de San Ildefonso in New Mexico, and Rivada Sea Lion in Alaska.


The NTIA says that by September 2012, its grant recipients had deployed more than 78,000 new or upgraded network miles in 51 states and territories; connected or improved service to 11,200 "anchor institutions" across 45 states and territories; and installed more than 38,600 new workstations in public computing centers across 38 states. The NTIA also says that training and adoption projects led 510,000 households and 12,000 businesses to subscribe to broadband services. The RUS says that its awards will provide access to 2.8 million households, 364,000 businesses, and 32,000 anchor institutions across more than 300,000 square miles. The GAO concluded in a September 2012 report, however, that "[d]ata limitations make it difficult to fully measure the effect of BTOP and BIP on expanding access to and adoption of broadband." According to the GAO, the "RUS initially did not collect [broadband access] data for BIP projects, and the data it has are not reliable." And on the broadband adoption side, the GAO said that "both NTIA and RUS have faced difficulties collecting reliable data from awardees on subscribership for BTOP and BIP projects" and the data "may not be accurate."

Overbuilding


Under the ARRA, the purpose of the BTOP infrastructure grants was to "provide access to broadband service to consumers residing in unserved areas" and "provide improved access to broadband service to consumers residing in underserved areas." The NTIA defined an area as "unserved" if at least 90 percent of households lacked access to terrestrial broadband service providing at least 768 kbps downstream and 200 kbps upstream. It defined an area as "underserved" if at least 50 percent of households lacked access to such broadband service, if no more than 40 percent of households subscribed to such service, or if no broadband service provider advertised speeds of at least 3 Mbps downstream. The ARRA directed the RUS to focus on unserved and underserved areas, requiring at least 75 percent of the area served by a BIP project to "be in a rural area without sufficient access to high speed broadband service to facilitate rural economic development," with priority for projects that "provide service to the highest proportion of rural residents that do not have access to broadband service."

Nevertheless, many carriers have complained that awardees have used BTOP and BIP grants and loans to overbuild existing systems rather than extend service to unserved areas. The GAO confirmed these suggestions at a February 10, 2011, subcommittee hearing, noting that the NTIA and the RUS had performed "due diligence" with respect to overbuilding but "made a decision to go forward nonetheless" with projects that would overbuild existing facilities. One example receiving national attention recently is the $100 million grant the NTIA awarded to EagleNet in Colorado. According to a February 11, 2013, New York Times story, the now-suspended project has built a third fiber connection to an 11-student elementary school in Agate, which the school says it does not need or want, instead of to rural mountain communities desperate for access. The Energy and Commerce Committee’s Subcommittee on Oversight and Investigations has also been investigating allegations by cable company Mediacom that the Lake County government in Minnesota is not only using $66 million in BIP funding to overbuild Mediacom, but included inaccurate information in its application to the RUS.

Overbuilding is problematic for a number of reasons. First, it provides "seconds or thirds" in terms of broadband access to some customers while others have yet to get "firsts," an inequitable and inefficient use of taxpayer money in a time of scarce federal dollars. Second, it unfairly subjects to government-subsidized competition businesses that have invested their own funds. This potentially divides the customer base from which the company can recover costs, jeopardizing its business and the jobs it created. Ironically, some rural businesses have even previously received broadband loans from the Department of Agriculture and say competition with stimulus funding may jeopardize their ability to repay what they borrowed. Third, it puts the federal dollars at greater risk, since the subsidized entity must similarly compete with the existing private businesses.

Waste

Because these stimulus projects are large governmental programs administered from Washington, D.C., without the disciplining pressures of having to earn a market return on private investment, potential waste is a concern. Indeed, the Department of Commerce Inspector General (IG) has classified these projects as high risk. A recent allegation of waste concerns a $126.3 million BTOP grant awarded to West Virginia. At a May 2012 hearing, Communications and Technology Subcommittee Chairman Walden and Rep. John Shimkus raised questions regarding a series of press stories alleging West Virginia had bought expensive, enterprise-grade routers for tiny libraries with only a few computers, and that hundreds of routers were also sitting in warehouses yet to be installed. Following the hearing, they sent letters to West Virginia and the Department of Commerce Inspector General seeking additional information. Audits by the Inspector General and West Virginia each recently concluded that the purchases were excessive, with the IG estimating overspending of between $500,000 and $1.2 million and the state auditor estimating the waste at potentially $9 million. State officials and the NTIA have countered that the purchases were meant to account for future growth and that the decision to buy uniform equipment across sites of various sizes would gain operating efficiencies that save money in the long run. One question, however, is whether adequate assessments of the sites or the use cases took place prior to the grant or the purchases to make that determination. Requiring such analyses might avoid similar controversies in the future, both with regard to money still unspent in these programs or any other programs going forward.

At a time when government is considering cutting meat inspectors and FAA traffic controllers to address the federal spending problem, we might do well to re-examine in the future whether we should be trying to replicate private-sector broadband investment with public money. As evidence mounts that the broadband stimulus programs may have already wasted hundreds of millions of dollars, we should at a minimum be doing a better job targeting taxpayer funds.

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If you have any questions regarding this hearing as well as any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

 

Friday, February 22, 2013

GAO Releases Report on Receiver Standards: Recommends Additional Action by FCC

Today, the Government Accountability Office (GAO) released a report recommending that, in order "to improve receiver performance and spectrum efficiency, the Chairman of the Federal Communications Commission (FCC) should consider collecting information on the practical effects of various options to improve receiver performance, including consideration of small-scale pilot tests of these options."

The GAO was directed by Congress under the Middle Class Tax Relief and Job Creation Act of 2012 to study spectrum efficiency and receiver performance. Accordingly, "the GAO studied four areas related to improving receiver performance, including (1) actions taken by manufacturers and commercial licensees, (2) actions taken by the federal government, (3) challenges, and (4) options identified by stakeholders."  And, the "GAO reviewed federal regulations and reports prepared by FCC, NTIA, industry stakeholders, and other researchers, and interviewed spectrum users, industry associations, and other stakeholders."

Below is a summary of what the GAO found in the report:

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Manufacturers and commercial licensees have taken a variety of actions to improve receiver performance. For some services, industry associations-- comprised of manufacturers, commercial licensees, and others--have developed voluntary standards that are often used to design and procure receivers, such as those in cell phones and televisions, and to help improve receiver performance. Stakeholders also reported privately negotiating to resolve interference problems and sharing of information as having helped improve receiver performance.

The federal government has used standards and taken other actions to improve receiver performance. Some federal spectrum users, like the Coast Guard and Department of Transportation, have specified or mandated use of industry standards for receivers using certain agency spectrum-based services. The National Telecommunications and Information Administration (NTIA), which manages the federal government's use of spectrum, has also mandated receiver standards for many federal spectrum assignments, such as those for land mobile radios used by emergency responders and radar systems. The Federal Communications Commission (FCC), which manages commercial and other nonfederal spectrum use, believes it lacks general authority to impose receiver standards and rather relies on the marketplace to improve receiver performance. In specific cases, FCC has provided incentives for nonfederal spectrum users to improve receivers. Both NTIA and FCC have taken additional actions to improve receiver performance, like undertaking studies and hosting public workshops.

Although industry and government have taken actions, stakeholders identified three challenges to improving receiver performance:
  • Lack of coordination across industries when developing voluntary standards: Standards are often developed for a single industry and not coordinated with those using adjacent spectrum.
  • Lack of incentives for manufacturers or spectrum users to incur costs associated with using more robust receivers: The benefits of improved receiver performance, namely freed-up spectrum for new services and users, often accrue to others and not those incurring the costs to improve receivers.
  • Difficulty accommodating a changing spectrum environment: When spectrum is repurposed for a new use, upgrading or replacing receivers currently in use to mitigate interference can be difficult and take considerable time.
In addition to greater use of voluntary industry standards, stakeholders GAO interviewed identified several other options to improve receiver performance. For example, interference limits would explicitly set a level of interfering signals that a receiver must tolerate before a user could seek government action to resolve interference problems. Each option entails trade-offs, and many stakeholders noted that a one-size-fits-all solution is likely not desirable or possible. Further, some options, such as interference limits, have not been implemented, and others, such as mandatory standards, have only been implemented for a limited number of users, primarily federal users. Therefore, the practical effects of these options--that is, what would happen if these options were individually or collectively implemented--are not well known, particularly for nonfederal users.

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The release of the GAO report follows a November 2012 hearing by the House Energy and Commerce Committee's Communications and Technology Subcommittee entitled "The Role of Receivers in a Spectrum Scarce World," and the work of FCC's Technological Advisory Council (TAC) on receiver performance issues. The President’s Council of Advisors on Science and Technology (PCAST) also "released a report on spectrum use in September 2012 that strongly recommended that the FCC and NTIA establish minimum technical standards for receivers."

If you have any questions regarding the GAO report, receiver performance policies or activity in Washington that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team. Mr. Schuemann has significant experience working for clients on issues related to receiver performance standards as well as spectrum policy.


Thursday, February 21, 2013

Signal Booster Report and Order

At today’s FCC Open Meeting, the Commissioners unanimously approved a Report and Order (“R&O”) establishing rules for the use of signal boosters.  Signal boosters can be used to enhance wireless coverage in areas with weak signals.  The R&O requires signal boosters to meet technical specifications, which are based on industry consensus, in order to mitigate interference concerns.  The R&O subjects consumer signal boosters to carrier consent and registration requirements.  The R&O does not establish a presumption of carrier consent for signal boosters that meet the technical rules, but the Commission expects that consent will be granted.  The Commission will review the technical specifications, consent, and registration requirements after two years.  On March 1, 2014, manufacturers and retailers will no longer be able to sell signal boosters that do not comply with the technical rules. 

TLP represented MetroPCS Communications, Inc. and Competitive Carriers Association in their efforts to reach an industry compromise on the use of signal boosters, most notably with respect to requiring carrier consent.   

If you have any questions about signal boosters or the new rules established for these devices, please feel free to contact the TLP Team

NTIA's CSMAC Continues its Snail's Pace Working Group Activity Related to the Repurposing the 1750-1850 MHz Band for Mobile Broadband Use by Consumers

Despite the fact that the federal government currently operates and maintains five of the top 10 supercomputers in the world, the Department of Commerce's National Telecommunications and Information Administration (NTIA) and its hand-picked Commerce Spectrum Management Advisory Committee (CSMAC) held another off site meeting today in California to hear another set of status reports from the multiple Working Groups that the NTIA established in order to manually "consider ways to facilitate the implementation of commercial wireless broadband" in the 1755-1850 MHz band. According to the NTIA, it "will take into consideration the CSMAC recommendations emerging from the Working Group efforts" if the NTIA needs to coordinate "with the FCC on any steps related to an auction and reallocation" of the spectrum bands.
 
The slow CSMAC Working Group activity follows the long-delayed release in late March 2012 of a disappointing report by the NTIA regarding the potential repurposing of spectrum in the 1755-1850 MHz band for commercial mobile broadband use. The report claimed it would take 10 years and $18 billion to clear the 95 MHz of spectrum -- figures which have not been audited or verified. Further, while the data in the NTIA's March 2012 report clearly indicates that there are one-third (about 1600) fewer Federal government frequency assignments in the 1755-1850 MHz band than there were about a decade ago (when the NTIA released a similar report on the same band in November 2000), the NTIA argued that there are several "challenges" that need to be met before making a formal recommendation about repurposing the entire 95 MHz, including the important 1755-1780 MHz sub-band. Basically, the CSMAC Working Groups are the "discussions between industry and the relevant federal agencies" that the NTIA's March 2012 report suggested in order to address the "challenges."
 
In addition, the NTIA, FCC and the Administration are now pushing the concept of sharing the spectrum in 1755-1850 MHz band by government and commercial interests. However, while companies like Verizon, Google and Microsoft support the Administration’s spectrum sharing proposal, most of the newer and urban-focused competitors in the wireless industry view sharing as a last resort.
 
Since no new spectrum has been auctioned in over five years and the incentive auctions of the TV bands do not look promising as a near term solution to the spectrum crunch, some have suggested that the Administration really needs to step-up its efforts on repurposing government spectrum. The 1755-1780 MHz sub-band is especially critical since can be paired with FCC's AWS-3 block (2155-2180 MHz) to create a 50 MHz block of spectrum that can be to auctioned in the near-term for mobile broadband use. Indeed, Congress actually passed legislation in December 2011 that contained language to require the 1755-1780 MHz sub-band to be auctioned for mobile broadband use within three years, but the 1755-1780 MHz language was stripped out of the House-Senate conference report containing the Spectrum Act.
 
If you have any questions regarding government spectrum reallocation or any other activity that could impact the telecommunications, media and technology sectors, please contact the TLP team.




Thursday, February 14, 2013

FCC Extends Construction Deadline for Lower 700 MHz A Block Licenses

The FCC’s Wireless Telecommunications Bureau released a Public Notice, issuing a limited waiver to extend the interim construction deadline for all active Lower 700 MHz A Block licenses to December 13, 2013.  The original deadline was June 13, 2013, but lower A Block licensees assert that interoperability issues hamper their ability to fulfill the construction requirement by that date.  The Bureau extended the construction deadline while it considers their extension requests, which remain pending. 

If you have any questions, please feel free to contact us at any time.

Wednesday, February 13, 2013

Senators Rockefeller and Thune Announce Members of the Senate Subcommittee on Communications, Technology, and the Internet

Today, the Senate Committee on Commerce, Science and Transportation -- under the leadership of Chairman Rockefeller (D-WV) and Ranking Member Thune (R-SD) -- announced the following names of the Senators that will sit on the Senate Subcommittee on Communications, Technology, and the Internet, which has authorizing and oversight authority in the Senate over the activities of the FCC and NTIA, among other things.
 

Senator Mark Pryor (D-AK), Chairman
Senator Barbara Boxer (D-CA)
Senator Bill Nelson (D-FL)
Senator Maria Cantwell (D-WA)
Senator Frank Lautenberg (D-NJ)
Senator Claire McCaskill (D-MO)
Senator Amy Klobuchar (D-MN)
Senator Mark Warner (D-VA)
Senator Mark Begich (D-AK)
Senator Richard Blumenthal (D-CT)
Senator Brian Schatz (D-HI)
Senator William Cowan (D-MA)

Senator Roger Wicker (R-MS), Ranking Member
Senator Roy Blunt (R-MO)
Senator Marco Rubio (R-FL)
Senator Kelly Ayotte (R-NH)
Senator Dean Heller (R-NV)
Senator Dan Coats (R-IN)
Senator Tim Scott (R-SC)
Senator Ted Cruz (R-TX)
Senator Deb Fischer (R-NE)
Senator Ron Johnson (R-WI)
 
Full Committee Chairman Rockefeller and Ranking Member Thune are also members of the Subcommittee.

If you have any questions regarding any activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.


 

Republican and Democratic leaders of the House Intelligence Committee Reintroduce Bipartisan Cybersecurity Legislation.

The day after President Obama issued his Executive Order on cybersecurity, the bipartisan leaders of the House Intelligence Committee reintroduced their CISPA bill, which passed by a strong bipartisan vote in the House during the 112th Congress but was blocked from further consideration in the Senate by Senate Democrats and the Obama Administration. See press release below.

In addition, the House Intelligence Committee will be holding a hearing on advanced cyberthreats facing the nation at 10:00 am EST on February 14, 2013. The webcast of the hearing is available here.

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Rogers & Ruppersberger Reintroduce Cybersecurity Bill to Protect the American Economy

WASHINGTON, D.C. – TODAY, Chairman Mike Rogers and Ranking Member C.A. Dutch Ruppersberger re-introduced H.R. 624, the Cyber Intelligence and Sharing Protection Act, their bipartisan cyber threat information sharing legislation, to help American businesses better protect their computer networks and corporate trade secrets from advanced cyber attacks. The bill that was introduced today is identical to the “Cyber Intelligence Sharing and Protection Act” (H.R. 3523) that passed the House by a strong bipartisan vote of 248-168 in April 2012.

This important legislation, which had 112 bipartisan cosponsors in the last Congress, will:

  • Allow the Federal government to provide classified cyber threat information to the private sector to help American companies better protect themselves from advanced cyber threats;
  • Empower American businesses to share cyber threat information with others in the private sector and enable the private sector to share information with the government on a purely voluntary basis, all while providing strong protections for privacy and civil liberties;
  • Provides liability protection for companies acting in good faith to protect their own networks or share threat information.

This bipartisan legislation was developed in close consultation with a broad range of private sector companies, trade groups, privacy and civil liberties advocates, and the Executive Branch.

Chairman Rogers said: “This is clearly not a theoretical threat - the recent spike in advanced cyber attacks against the banks and newspapers makes that crystal clear. American businesses are under siege. We need to provide American companies the information they need to better protect their networks from these dangerous cyber threats. It is time to stop admiring this problem and deal with it immediately. Congress urgently needs to pass our cyber threat information sharing bill to protect our national security, our economy, and U.S. jobs.”

"American industry is under attack, costing our country and our economy billions of dollars and thousands of jobs. We need to do everything we can to enable American companies to defend themselves against these devastating cyber attacks. Our bill does just that by permitting the voluntary sharing of critical threat intelligence while preserving important civil liberties," said Ranking Member C.A. Dutch Ruppersberger.

The bill’s strong protections for privacy and civil liberties include:

  • Narrow definitions that permit only the voluntary sharing by the private sector of a limited category of information—cyber threat information—and only for cybersecurity purposes;
  • Strict restrictions on the government’s use, retention, and searching of any data voluntarily shared by the private sector;
  • Provisions permitting individuals to sue the government in federal court for violations of the bill’s privacy restrictions;
  • Requiring the independent Intelligence Community Inspector General to conduct a detailed review of the government’s use of any information voluntarily shared by the private sector, and provide an unclassified report to Congress;
  • A sunset for the bill’s authorities in five years, requiring Congress to carefully review the use of the authorities provided under the legislation to determine whether they should be extended or modified.

Steve Largent, President and CEO of CTIA, The Wireless Association said: “CTIA believes that enactment of legislation to facilitates the sharing of cyber-defense information between the federal government and the private sector, as well as among private sector entities in the most important step Congress can take to enhance America’s ability to defend against cyber attacks. The Wireless Association, thanks you for introducing the Cyber Intelligence Sharing and Protection Act.”

“This legislation addresses critical information-sharing needs, while providing the appropriate safeguards necessary for facilitating such sharing. As the number of threats and attacks has only increased, your legislation is needed even more urgently now than when it passed the House on a bipartisan vote last April,” said, Walter McCormick, Jr., President and CEO of US Telecom.

By allowing the private sector to share cyber threat information, and employ classified information to protect its networks, this bill will harness private sector drive and innovation while also keeping the government out of the business of monitoring and guarding private sector networks.

Please visit the Committee website to find supporting documents on this important legislation here. 

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TLP has assisted clients with issues related to the consideration of cybersecurity legislation in Congress, including assisting a client in testifying before Congress on the subject of cybersecurity and communications networks. If you have any questions regarding any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.

Signal Boosters and Unlicensed Use of 5 GHz Band on the February FCC Open Meeting Agenda

The FCC announced its finalized agenda for its Open Meeting on Wednesday, February 20, 2013 at 10:30 AM. The Commission plans to consider:
  • A Report and Order on using signal boosters to improve wireless coverage.  The Report and Order would protect wireless networks from interference by adopting technical, operational, and registration requirements for signal boosters.
  • A Notice of Proposed Rulemaking to increase the amount of spectrum available for unlicensed devices in the 5 GHz band as required by the Spectrum Act
The meeting will be available online at here. Please feel free to contact the TLP team if you have any questions


Tuesday, February 12, 2013

President Obama Issues Executive Order on Improving Critical Infrastructure Cybersecurity

As indicated in his State of the Union Speech, the President has issued his E.O. on cybersecurity. See the text of the E.O. below.

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EXECUTIVE ORDER
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IMPROVING CRITICAL INFRASTRUCTURE CYBERSECURITY

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. Repeated cyber intrusions into critical infrastructure demonstrate the need for improved cybersecurity. The cyber threat to critical infrastructure continues to grow and represents one of the most serious national security challenges we must confront. The national and economic security of the United States depends on the reliable functioning of the Nation's critical infrastructure in the face of such threats. It is the policy of the United States to enhance the security and resilience of the Nation's critical infrastructure and to maintain a cyber environment that encourages efficiency, innovation, and economic prosperity while promoting safety, security, business confidentiality, privacy, and civil liberties. We can achieve these goals through a partnership with the owners and operators of critical infrastructure to improve cybersecurity information sharing and collaboratively develop and implement risk-based standards.

Sec. 2. Critical Infrastructure. As used in this order, the term critical infrastructure means systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.

Sec. 3. Policy Coordination. Policy coordination, guidance, dispute resolution, and periodic in-progress reviews for the functions and programs described and assigned herein shall be provided through the interagency process established in Presidential Policy Directive-1 of February 13, 2009 (Organization of the National Security Council System), or any successor.

Sec. 4. Cybersecurity Information Sharing. (a) It is the policy of the United States Government to increase the volume, timeliness, and quality of cyber threat information shared with U.S. private sector entities so that these entities may better protect and defend themselves against cyber threats. Within 120 days of the date of this order, the Attorney General, the Secretary of Homeland Security (the "Secretary"), and the Director of National Intelligence shall each issue instructions consistent with their authorities and with the requirements of section 12(c) of this order to ensure the timely production of unclassified reports of cyber threats to the U.S. homeland that identify a specific targeted entity. The instructions shall address the need to protect intelligence and law enforcement sources, methods, operations, and investigations.

(b) The Secretary and the Attorney General, in coordination with the Director of National Intelligence, shall establish a process that rapidly disseminates the reports produced pursuant to section 4(a) of this order to the targeted entity. Such process shall also, consistent with the need to protect national security information, include the dissemination of classified reports to critical infrastructure entities authorized to receive them. The Secretary and the Attorney General, in coordination with the Director of National Intelligence, shall establish a system for tracking the production, dissemination, and disposition of these reports.

(c) To assist the owners and operators of critical infrastructure in protecting their systems from unauthorized access, exploitation, or harm, the Secretary, consistent with 6 U.S.C. 143 and in collaboration with the Secretary of Defense, shall, within 120 days of the date of this order, establish procedures to expand the Enhanced Cybersecurity Services program to all critical infrastructure sectors. This voluntary information sharing program will provide classified cyber threat and technical information from the Government to eligible critical infrastructure companies or commercial service providers that offer security services to critical infrastructure.

(d) The Secretary, as the Executive Agent for the Classified National Security Information Program created under Executive Order 13549 of August 18, 2010 (Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities), shall expedite the processing of security clearances to appropriate personnel employed by critical infrastructure owners and operators, prioritizing the critical infrastructure identified in section 9 of this order.

(e) In order to maximize the utility of cyber threat information sharing with the private sector, the Secretary shall expand the use of programs that bring private sector subject-matter experts into Federal service on a temporary basis. These subject matter experts should provide advice regarding the content, structure, and types of information most useful to critical infrastructure owners and operators in reducing and mitigating cyber risks.

Sec. 5. Privacy and Civil Liberties Protections. (a) Agencies shall coordinate their activities under this order with their senior agency officials for privacy and civil liberties and ensure that privacy and civil liberties protections are incorporated into such activities. Such protections shall be based upon the Fair Information Practice Principles and other privacy and civil liberties policies, principles, and frameworks as they apply to each agency's activities.

(b) The Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security (DHS) shall assess the privacy and civil liberties risks of the functions and programs undertaken by DHS as called for in this order and shall recommend to the Secretary ways to minimize or mitigate such risks, in a publicly available report, to be released within 1 year of the date of this order. Senior agency privacy and civil liberties officials for other agencies engaged in activities under this order shall conduct assessments of their agency activities and provide those assessments to DHS for consideration and inclusion in the report. The report shall be reviewed on an annual basis and revised as necessary. The report may contain a classified annex if necessary. Assessments shall include evaluation of activities against the Fair Information Practice Principles and other applicable privacy and civil liberties policies, principles, and frameworks. Agencies shall consider the assessments and recommendations of the report in implementing privacy and civil liberties protections for agency activities.

(c) In producing the report required under subsection (b) of this section, the Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties of DHS shall consult with the Privacy and Civil Liberties Oversight Board and coordinate with the Office of Management and Budget (OMB).

(d) Information submitted voluntarily in accordance with 6 U.S.C. 133 by private entities under this order shall be protected from disclosure to the fullest extent permitted by law.

Sec. 6. Consultative Process. The Secretary shall establish a consultative process to coordinate improvements to the cybersecurity of critical infrastructure. As part of the consultative process, the Secretary shall engage and consider the advice, on matters set forth in this order, of the Critical Infrastructure Partnership Advisory Council; Sector Coordinating Councils; critical infrastructure owners and operators; Sector-Specific Agencies; other relevant agencies; independent regulatory agencies; State, local, territorial, and tribal governments; universities; and outside experts.

Sec. 7. Baseline Framework to Reduce Cyber Risk to Critical Infrastructure. (a) The Secretary of Commerce shall direct the Director of the National Institute of Standards and Technology (the "Director") to lead the development of a framework to reduce cyber risks to critical infrastructure (the "Cybersecurity Framework"). The Cybersecurity Framework shall include a set of standards, methodologies, procedures, and processes that align policy, business, and technological approaches to address cyber risks. The Cybersecurity Framework shall incorporate voluntary consensus standards and industry best practices to the fullest extent possible. The Cybersecurity Framework shall be consistent with voluntary international standards when such international standards will advance the objectives of this order, and shall meet the requirements of the National Institute of Standards and Technology Act, as amended (15 U.S.C. 271 et seq.), the National Technology Transfer and Advancement Act of 1995 (Public Law 104-113), and OMB Circular A-119, as revised.

(b) The Cybersecurity Framework shall provide a prioritized, flexible, repeatable, performance-based, and cost-effective approach, including information security measures and controls, to help owners and operators of critical infrastructure identify, assess, and manage cyber risk. The Cybersecurity Framework shall focus on identifying cross-sector security standards and guidelines applicable to critical infrastructure. The Cybersecurity Framework will also identify areas for improvement that should be addressed through future collaboration with particular sectors and standards-developing organizations. To enable technical innovation and account for organizational differences, the Cybersecurity Framework will provide guidance that is technology neutral and that enables critical infrastructure sectors to benefit from a competitive market for products and services that meet the standards, methodologies, procedures, and processes developed to address cyber risks. The Cybersecurity Framework shall include guidance for measuring the performance of an entity in implementing the Cybersecurity Framework.

(c) The Cybersecurity Framework shall include methodologies to identify and mitigate impacts of the Cybersecurity Framework and associated information security measures or controls on business confidentiality, and to protect individual privacy and civil liberties.

(d) In developing the Cybersecurity Framework, the Director shall engage in an open public review and comment process. The Director shall also consult with the Secretary, the National Security Agency, Sector-Specific Agencies and other interested agencies including OMB, owners and operators of critical infrastructure, and other stakeholders through the consultative process established in section 6 of this order. The Secretary, the Director of National Intelligence, and the heads of other relevant agencies shall provide threat and vulnerability information and technical expertise to inform the development of the Cybersecurity Framework. The Secretary shall provide performance goals for the Cybersecurity Framework informed by work under section 9 of this order.

(e) Within 240 days of the date of this order, the Director shall publish a preliminary version of the Cybersecurity Framework (the "preliminary Framework"). Within 1 year of the date of this order, and after coordination with the Secretary to ensure suitability under section 8 of this order, the Director shall publish a final version of the Cybersecurity Framework (the "final Framework").

(f) Consistent with statutory responsibilities, the Director will ensure the Cybersecurity Framework and related guidance is reviewed and updated as necessary, taking into consideration technological changes, changes in cyber risks, operational feedback from owners and operators of critical infrastructure, experience from the implementation of section 8 of this order, and any other relevant factors.

Sec. 8. Voluntary Critical Infrastructure Cybersecurity Program. (a) The Secretary, in coordination with Sector-Specific Agencies, shall establish a voluntary program to support the adoption of the Cybersecurity Framework by owners and operators of critical infrastructure and any other interested entities (the "Program").

(b) Sector-Specific Agencies, in consultation with the Secretary and other interested agencies, shall coordinate with the Sector Coordinating Councils to review the Cybersecurity Framework and, if necessary, develop implementation guidance or supplemental materials to address sector-specific risks and operating environments.

(c) Sector-Specific Agencies shall report annually to the President, through the Secretary, on the extent to which owners and operators notified under section 9 of this order are participating in the Program.

(d) The Secretary shall coordinate establishment of a set of incentives designed to promote participation in the Program. Within 120 days of the date of this order, the Secretary and the Secretaries of the Treasury and Commerce each shall make recommendations separately to the President, through the Assistant to the President for Homeland Security and Counterterrorism and the Assistant to the President for Economic Affairs, that shall include analysis of the benefits and relative effectiveness of such incentives, and whether the incentives would require legislation or can be provided under existing law and authorities to participants in the Program.

(e) Within 120 days of the date of this order, the Secretary of Defense and the Administrator of General Services, in consultation with the Secretary and the Federal Acquisition Regulatory Council, shall make recommendations to the President, through the Assistant to the President for Homeland Security and Counterterrorism and the Assistant to the President for Economic Affairs, on the feasibility, security benefits, and relative merits of incorporating security standards into acquisition planning and contract administration. The report shall address what steps can be taken to harmonize and make consistent existing procurement requirements related to cybersecurity.

Sec. 9. Identification of Critical Infrastructure at Greatest Risk. (a) Within 150 days of the date of this order, the Secretary shall use a risk-based approach to identify critical infrastructure where a cybersecurity incident could reasonably result in catastrophic regional or national effects on public health or safety, economic security, or national security. In identifying critical infrastructure for this purpose, the Secretary shall use the consultative process established in section 6 of this order and draw upon the expertise of Sector-Specific Agencies. The Secretary shall apply consistent, objective criteria in identifying such critical infrastructure. The Secretary shall not identify any commercial information technology products or consumer information technology services under this section. The Secretary shall review and update the list of identified critical infrastructure under this section on an annual basis, and provide such list to the President, through the Assistant to the President for Homeland Security and Counterterrorism and the Assistant to the President for Economic Affairs.

(b) Heads of Sector-Specific Agencies and other relevant agencies shall provide the Secretary with information necessary to carry out the responsibilities under this section. The Secretary shall develop a process for other relevant stakeholders to submit information to assist in making the identifications required in subsection (a) of this section.

(c) The Secretary, in coordination with Sector-Specific Agencies, shall confidentially notify owners and operators of critical infrastructure identified under subsection (a) of this section that they have been so identified, and ensure identified owners and operators are provided the basis for the determination. The Secretary shall establish a process through which owners and operators of critical infrastructure may submit relevant information and request reconsideration of identifications under subsection (a) of this section.

Sec. 10. Adoption of Framework. (a) Agencies with responsibility for regulating the security of critical infrastructure shall engage in a consultative process with DHS, OMB, and the National Security Staff to review the preliminary Cybersecurity Framework and determine if current cybersecurity regulatory requirements are sufficient given current and projected risks. In making such determination, these agencies shall consider the identification of critical infrastructure required under section 9 of this order. Within 90 days of the publication of the preliminary Framework, these agencies shall submit a report to the President, through the Assistant to the President for Homeland Security and Counterterrorism, the Director of OMB, and the Assistant to the President for Economic Affairs, that states whether or not the agency has clear authority to establish requirements based upon the Cybersecurity Framework to sufficiently address current and projected cyber risks to critical infrastructure, the existing authorities identified, and any additional authority required.

(b) If current regulatory requirements are deemed to be insufficient, within 90 days of publication of the final Framework, agencies identified in subsection (a) of this section shall propose prioritized, risk-based, efficient, and coordinated actions, consistent with Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and Executive Order 13609 of May 1, 2012 (Promoting International Regulatory Cooperation), to mitigate cyber risk.

(c) Within 2 years after publication of the final Framework, consistent with Executive Order 13563 and Executive Order 13610 of May 10, 2012 (Identifying and Reducing Regulatory Burdens), agencies identified in subsection (a) of this section shall, in consultation with owners and operators of critical infrastructure, report to OMB on any critical infrastructure subject to ineffective, conflicting, or excessively burdensome cybersecurity requirements. This report shall describe efforts made by agencies, and make recommendations for further actions, to minimize or eliminate such requirements.

(d) The Secretary shall coordinate the provision of technical assistance to agencies identified in subsection (a) of this section on the development of their cybersecurity workforce and programs.

(e) Independent regulatory agencies with responsibility for regulating the security of critical infrastructure are encouraged to engage in a consultative process with the Secretary, relevant Sector-Specific Agencies, and other affected parties to consider prioritized actions to mitigate cyber risks for critical infrastructure consistent with their authorities.

Sec. 11. Definitions. (a) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(b) "Critical Infrastructure Partnership Advisory Council" means the council established by DHS under 6 U.S.C. 451 to facilitate effective interaction and coordination of critical infrastructure protection activities among the Federal Government; the private sector; and State, local, territorial, and tribal governments.

(c) "Fair Information Practice Principles" means the eight principles set forth in Appendix A of the National Strategy for Trusted Identities in Cyberspace.

(d) "Independent regulatory agency" has the meaning given the term in 44 U.S.C. 3502(5).

(e) "Sector Coordinating Council" means a private sector coordinating council composed of representatives of owners and operators within a particular sector of critical infrastructure established by the National Infrastructure Protection Plan or any successor.

(f) "Sector-Specific Agency" has the meaning given the term in Presidential Policy Directive-21 of February 12, 2013 (Critical Infrastructure Security and Resilience), or any successor.

Sec. 12. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. Nothing in this order shall be construed to provide an agency with authority for regulating the security of critical infrastructure in addition to or to a greater extent than the authority the agency has under existing law. Nothing in this order shall be construed to alter or limit any authority or responsibility of an agency under existing law.

(b) Nothing in this order shall be construed to impair or otherwise affect the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(c) All actions taken pursuant to this order shall be consistent with requirements and authorities to protect intelligence and law enforcement sources and methods. Nothing in this order shall be interpreted to supersede measures established under authority of law to protect the security and integrity of specific activities and associations that are in direct support of intelligence and law enforcement operations.

(d) This order shall be implemented consistent with U.S. international obligations.

(e) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

BARACK OBAMA
 
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TLP has helped clients with issues related to cybersecurity policies, including assisting a client in testifying before Congress on the subject of cybersecurity and communications networks. If you have any questions regarding this Executive Order or any legislation or activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any member of the TLP team.
 
 
 

FCC Says Reforms Addressing Waste, Fraud and Abuse in the Lifeline Program Will Save More Than $2 Billion

The FCC announced that its reforms to Lifeline are on track to save more than $2 billion through 2014.  Lifeline is a program that subsidizes home and wireless phone service for low-income Americans.

The FCC’s reforms targeted waste, fraud, and abuse by eliminating duplicative Lifeline payments, requiring Lifeline customers to recertify their eligibility with carriers each year, eliminating Link Up subsidies for new connections outside most tribal areas, and clarifying that Lifeline subscriptions are limited to one per household.  These reforms saved over $214 million in 2012, and they are on track to save $400 million in 2013.

The Wall Street Journal also investigated the impact of the FCC reforms here.

Please feel free to contact the TLP Team if you have any questions.  

Monday, February 11, 2013

FCC Begins Implementation of Spectrum Act Requirements to Reallocate and Auction the 470-512 MHz Band (T-Band) for Mobile Broadband Use

Under Section 6103 of the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act), the Federal Communications Commissions is required -- before February 2021 -- to reallocate the public safety spectrum in the 470-512 MHz band (T Band) and auction that spectrum for commercial mobile broadband use. The Act also requires the Commission to fully clear the public safety licensees from the T-Band within two years of the auction and authorizes the use of auction funds to help cover the costs related to relocating the public safety licensees, if necessary. Nothing under the Act, however, prevents the Commission from accelerating the timetable for auctioning and clearing of the T Band. 

In the Spectrum Act, Congress decided to reclaim the 42 MHz block of T Band spectrum from public safety in exchange for the reallocation of the 10 MHz block of Upper 700 MHz commercial D Block spectrum, for which APCO as well as other public safety trade groups and vendors aggressively lobbied Congress in order to build a nationwide public safety broadband network (FirstNet). Innovative mobile providers, such as MetroPCS, which have been suffering under the well documented "spectrum crunch" desperately needed the opportunity to win the then-commercial D Block spectrum in a re-auction in order to remain competitive with the spectrum-rich big carriers and continue to offer consumers affordable mobile broadband choices.  However, in testimony before Congress, some public safety representatives had stated that they may be willing to return of some of the roughly 100 MHz of spectrum that had been already allocated for public safety use if Congress would just reallocate the additional 10 MHz of D Block spectrum to public safety and add it to the adjacent 24 MHz block of Upper 700 MHz public safety spectrum -- the 24 MHz block of spectrum which Congress had just reallocated and cleared for public safety use in 2006 as specifically recommended in the 9/11 Commission Report.  

Accordingly, the Commission released a Public Notice on February 11, 2013, seeking comment on a broad range of issues related to the implementation of the Section 6103 of the Spectrum Act in order to start the process of auctioning and clearing the T Band so that it can be used by consumers for mobile broadband use. The Commission "encourage[s] commenters to present specific proposals for implementing the provisions of Section 6103, including the technical, financial, administrative, legal, and policy implications of each option." Comments on the Public Notice are due on May 13, 2013, and Reply Comments are due on June 11, 2013.

If you have any questions regarding this Public Notice or any other activity in Congress or at the FCC that could impact the telecommunications, media and technology sectors, please contact the TLP team.